A federal appeals court this week reaffirmed its decision to allow the family of 13-year-old Andy Lopez to pursue a wrongful death claim against the Sonoma County sheriff’s deputy who shot and killed the boy carrying a replica assault rifle in 2013.
Lawyers for Sonoma County and Sgt. Erick Gelhaus argued in November the decision should be reconsidered by all 11 judges on the 9th U.S. Circuit Court of Appeals because it created an unrealistic expectation that officers must wait for more aggressive behavior before firing a weapon.
The court rejected the petition in December and on Tuesday re-entered its 2-to-1 decision that there is sufficient evidence for a jury to conclude Gelhaus, a veteran with the Sonoma County Sheriff’s Office, was not in imminent danger when he shot and killed Lopez. The decision reaffirmed a lower court’s ruling to not grant immunity to Gelhaus, which is given in cases when it’s determined an officer has reasonable fear of a threat to himself or others. The court found evidence Lopez never raised the barrel of the gun to a level that posed a threat and determined a jury should decide if Gelhaus violated Lopez’s civil rights.
“This decision has national implications for all law enforcement,” Noah Blechman, the county’s lawyer, said. “It is an important decision, which the county and the defendant believe is incorrect.”
Blechman noted the arguments of the dissenting vote on the three-justice panel by Judge J. Clifford Wallace. Wallace argued the court should grant Gelhaus immunity because the upward movement of the fake gun as the boy turned could be perceived, albeit wrongly, as a threat under prevailing court precedents at the time of the shooting.
As a next step, the county could take the issue to the U.S. Supreme Court, and it has until March 22 to evaluate the option and file an appeal, Blechman said. If not, the case will continue to proceed toward trial.
The Oct. 22, 2013, shooting occurred as Lopez walked on a Moorland Avenue sidewalk outside Santa Rosa city limits. The eighth-grader was carrying a plastic, replica AK-47 airsoft gun with its orange safety tip removed.
From the passenger seat of a patrol car, Gelhaus spotted Lopez from behind, got out of the car, ordered him to drop the weapon and fired his gun, hitting Lopez seven times. Gelhaus has said he shot Lopez — who was walking away from the deputies — when the boy began to turn toward him.
Lawyers on both sides have argued over whether the way in which the gun barrel rose as the boy turned could be perceived as an imminent threat.
Sonoma County District Attorney Jill Ravitch reviewed the case and cleared Gelhaus of criminal wrongdoing.
Lopez’s parents, Rodrigo Lopez and Sujay Cruz, sued Gelhaus and Sonoma County in a federal civil rights case. Their lawyer, Arnoldo Casillas, couldn’t be reached Wednesday.
Multiple organizations filed amicus briefs in support of the county’s appeal, including the California State Sheriffs’ Association, California Police Chiefs Association, California Peace Officers Association, California State Association of Counties, International Municipal Lawyers Association and the Peace Officers’ Research Association of California’s legal defense fund, which provides legal representation for law enforcement involved in officer-involved shootings.